Lamont v. Marbury Lumber Co.

• Decision Date: 14 May 1914
• Docket Number: 60
• Citation: 187 Ala. 436,65 So. 369
• Parties: LAMONT v. MARBURY LUMBER CO.
• Court: Alabama Supreme Court

65 So. 369

187 Ala. 436

LAMONT v. MARBURY LUMBER CO.

No. 60

Supreme Court of Alabama

May 14, 1914

Appeal from Circuit Court, Autauga County; W.W. Pearson, Judge.

Action by M.B. Lamont against the Marbury Lumber Company for trespass to realty. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

See also, 169 Ala. 33, 53 So. 773.

The complaint is as follows:

Count 1. Plaintiff claims of defendant $5,000 for this, to wit: That, plaintiff being the owner and in possession of a certain house on her tract of land, in said state and county consisting of the N.W. 1/4 of section 19, and the W. 1/2 of the N.W. 1/4 section 20, township 20, range 16, the said defendants, acting through their agents and servants, in the month of November of the year 1905, without any lawful excuse entered upon her said premises, and tore down and demolished her said house, erected in 1897, to the damage of plaintiff $5,000, for which she sues, and said trespass was made willfully and knowingly; the defendants being informed that the house was on plaintiff's land.

(2) Plaintiff claims of defendant the further sum of $5,000 for this, to wit: That said defendant, acting through their agents and servants in, to wit, the month of November, 1905 wrongfully and intentionally, and without just cause or excuse, and in utter disregard of plaintiff's rights entered upon her premises, consisting of the lands described in count 1, and tore down and demolished, her house situated thereon.

The following are the pleas:

(2) That if the house from which the lumber was taken, and which was partly torn down, was on plaintiff's land, it was nevertheless the property of defendant Marbury Lumber Company, because the said company was the owner of the lands on the south and west of plaintiff's lands, and when it erected the house in question it was under the mistaken belief that the house was being erected on its lands, and not on plaintiff's lands, and that, even if the survey of the county surveyor afterwards showed it to be on plaintiff's land, it was nevertheless, under the statutes of Alabama, still the property of the Marbury Lumber Company.

B. That the house on said lands was not the property of plaintiff, but was a house erected by defendant Marbury Lumber Company out of material belonging to it, and during the year 1896, by mistake, was erected across the lines from its lands on plaintiff's land. That the true line was not discovered until, to wit, the year 1905, when the line was located by the county surveyors, and it was then learned that said house was across the line and on plaintiff's lands.

The demurrers were as follows: To plea 2 that it does not show when said house was erected, or show that it was at a time when there was a law giving defendant the right to a house or to take it down. To plea B, that it shows the erection of the house on plaintiff's land at a time and under circumstances that made the house plaintiff's house, and showing that defendant had no right to tear it down or to injure it; the fact that defendant erected the house by mistake gave them no right to tear it down; the plea is no answer to the actual damage; the plea confesses the trespass, and makes no answer thereto by way of avoidance; the plea only traverses the malice of the trespasser; the plea neither answers the actual damages nor the punitive damages claimed. Separately to both pleas, that they do not purport to and do not answer the trespass as to the actual damages; only set up matters which purport to answer the malice of the trespass, and this cannot be separately pleaded to as an answer to the complaint. The judgment entry recites as follows, as to the demurrers:

"Demurrers to pleas 2 and B coming on to be heard, it is ordered and adjudged by the court that the same be and they are hereby overruled."

The authorities noted by appellee in support of the insistence that no judgment is shown on demurrers are Bell v. Otts, 101 Ala. 186, 13 So. 43, 46 Am.St.Rep. 117; Jasper Merc. Co. v. O'Rear, 112 Ala. 247, 20 So. 583; Tallassee Falls Mfg. Co. v. Wes. Ry. of Ala., 128 Ala. 167, 29 So. 203; McKissack v. Witz, 120 Ala. 412, 25 So. 21; Bessemer L. Co. v. Du Bose, 125 Ala. 442, 28 So. 380; Cartilege v. Sloan, 124 Ala. 596, 26 So. 918; McDonald v. Ala. Mid. Ry. Co., 123 Ala. 227, 26 So. 165; Baker v. Swift, 87 Ala. 530, 6 So. 153; Park v. Lide, 90 Ala. 246, 7 So. 805; Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Long v. Holley, 157 Ala. 514, 47 So. 655; Crawford v. Crawford, 119 Ala. 34, 24 So. 727; Hereford v. Combs, 126 Ala. 369, 28 So. 582; Ala. Nat. Bank v. Hunt, 125 Ala. 512, 28 So. 488; Elyton L. Co. v. Morgan, 88 Ala. 434, 7 So. 249.

W.A. Gunter, of Montgomery, for appellant.

Rushton, Williams & Crenshaw, of Montgomery, for appellee.

McCLELLAN J.

This is the second appeal. 169 Ala. 33, 53 So. 773. The action is trespass to realty. The report of the appeal will contain the counts of the complaint. To them pleas 2 and B were interposed; and demurrers to them, the particular grounds of which the report of the appeal will disclose, were overruled. This appeal only presents for review that action of the trial court. These pleas sought to invoke in bar of a recovery this statute (Code, § 6026):

"When a survey of land is made by a county surveyor for the purpose of straightening or locating section or other lines, the owners of the fences or buildings erected on or near the original or supposed lines shall not lose their right to the same, when the survey places the fences or buildings upon the lands of others."

This section (6026) is the duplicate of section 3898 3698 of the Code of 1896. The Code of 1886, section 942, did not include buildings; that subject of the statute's effect being new to the Code of 1896. The Code of 1896 went into operation and effect on February 17, 1898, by proclamation of the Governor. Acts 1896-97, p. 1089.

In count 1 it is averred that the building removed was "erected in 1897." Count 2 is silent as to the...